The best interest of the child
The best interests of the child (UNCRC Article 3)
shall be a primary consideration in all decisions and actions that concern the
child. Understanding the best interests of the child requires decision-makers
to assess the needs of the child in a comprehensive way and to take those needs
into account and assign due weight to each of them when making decisions in
relation to the child. Promoting the best interests of the child requires due
attention to other general principles under the Convention:
- the
right to non-discrimination (Art. 2),
- the
right to live, survival and development of the Child (Art. 6), and
- the
right to be heard (Art. 12).
The Committee on the Rights of the Child explains
the best interests principle as a three-fold concept: a substantive right; a fundamental, interpretive
legal principle; and a rule of procedure.
As a substantive right, Article 3.1 is considered directly applicable and
can be invoked before a court. Each child has the right to have their best interests assessed and taken as a
primary consideration when different interests are being considered to reach a
decision.
As a fundamental, interpretive legal principle, the best interests principle offers guidance for the
application of laws: when there is room for interpretation and discretion in
applying a specific law, the interpretation
which most effectively serves the best interests of the child shall be applied.
As a rule of procedure, the principle implies that decision-making processes
concerning children individually or collectively, in particular those aimed at
assessing and determining the best interests of a child or a group of children,
need to be transparent and explain the possible positive or negative impact of
the decision on the child or a relevant group of children.[1]
See
also:
Level 5: Mandate and tasks of the
guardian – Promote the best interests of the child
Level 6: Promoting the rights and the
best interests of the child – Best interests determination
References:
EU training and learning platform for guardians of
unaccompanied children
Chapter 2: Guardianship in the best interests of the child
Chapter 3: Supporting the child from arrival to durable solution
Literature:
Council of the Baltic Sea States (2015),
Guidelines on the Human Rights and Best Interests of the Child in Transnational Situations, Council of the Baltic Sea States Children’s Unit and
Expert Group for Cooperation on Children at Risk, Stockholm, 2015.
European Asylum Support Office (2019), EASO Practical Guide on the best interests of the child in asylum procedures, EASO Practical Guide Series, 2019.
Ruggiero, R. (2022),
‘Article 3: The best interests of the child’ in: Vaghri, Z., Zermatten, J., Lansdown,
G., Ruggiero, R. (eds.), Monitoring State compliance with the UN Conventionon the Rights of the Child, An analysis of
attributes, Springer, pp. 21-29.
UN Committee on the Rights of the Child (2013), General Comment No. 14 on the right of the child
to have his or her best interests taken as a primary consideration (art.3,
para. 1), CRC/C/GC/14, 2013.
United Nations High Commissioner for
Refugees (UNHCR) (2021), 2021 UNHCR best interests procedure guidelines: assessing and determining the best
interests of the child.
United Nations High Commissioner for
Refugees, United Nations Children’s Fund, Safe and Sound
, What States can do to ensure
respect for the best interests of unaccompanied and separated children in
Europe,
2014.
[1] Committee on the Rights of the Child, General
Comment No. 14 (2003) on the right of the child to have his or her best
interests taken as a primary consideration,
CRC /C/GC/14, 29 May 2013, para. 6.